G.S. Sandhawalia, J.
C.M. No. 5554-CII of 2012
1. Application filed u/s 151 CPC seeking exemption from filing certified copies of Annexures P-1 to P-5 is allowed, in view of the averments made in the application, which are duly supported by an affidavit.
C.M. No. 5555-CII of 2012
Application filed u/s 151 CPC for placing on record photostat copies of Annexures P-2, P-4 and P-5 is allowed, in view of the averments made in the application, which are duly supported by an affidavit.
C.R. No. 1314 of 2012
2. The present revision petition has been filed by the tenant against order dated 10.02.2012 passed by the appellate authority whereby, mesne profits to the tune of Rs. 1 lac per month have been fixed for the property in question bearing SCO No. 373, ground floor, Sector 44-D, Chandigarh during the pendency of the appeal before the appellate authority. The landlady filed an ejectment application against the respondent-tenant and was successful and eviction was ordered on 10.05.2011 by the Rent Controller. During the pendency of the appeal before the appellate authority, the landlady filed an application for payment of mesne profits by the respondent during the pendency of appeal on the ground that the market rate of rent of the premises in question was Rs. 1,50,000 per month and, therefore, the tenant was required to pay the same sum from the date of eviction order. The landlady relied upon a registered lease deed of SCO No. 363, Sector 44-D, Chandigarh, which was executed on 02.05.2011 in respect of the basement and ground floor wherein, rent was fixed at Rs. 2 lac. Accordingly, it was pleaded that the market rent of the premises should be Rs. 1,50,000. The tenant objected to the said application and claimed that the market rent was not more than Rs. 30,000-35,000 per month and that the lease deed in question pertains to a wine shop and the basement was also part of the tenanted premises and liquor/wine shops go for higher rent as they are let out only for a period of 12 months. Reliance was placed upon other lease deeds wherein, the rent was Rs. 30,000-40,000 per month and accordingly, dismissal of the application was prayed for. The appellate authority, after taking into consideration the observations of the Hon''ble Apex Court in the State of Maharashtra and another vs. Super Max International Pvt. Ltd. and others, 2009 (2) RCR 246 (SC), examined all the three lease deeds on the record and came to the conclusion that the lease deeds dated 16.05.2005 and 11.10.2009 put forward by the tenant would not provide suitable guidance to assess the market rent as the date of eviction was 10.05.2011. It was also noticed that though in the said lease deeds, rent had been agreed upto year 2014-15 and the rent increased yearly by a fixed percentage but the rent of commercial properties had shot up steeply. Accordingly, reliance was placed upon the lease deed furnished by the landlady and after taking into consideration that the premises have been let out for a wine shop and it would not furnish a suitable basis for assessing the market rate of rent of the disputed premises and also keeping in mind that the said lease deed pertains to the ground floor portion and the basement, it was directed that the market rate of rent could be successfully assessed at Rs. 1 lac. Further direction was issued that the amount of Rs. 1 lac would be deposited in the Court of Rent Controller by way of fixed deposit having maximum rate of interest in favour of the landlords and the said amount alongwith accrued interest shall be paid after the final disposal in favour of the either side. The landlady was not entitled to withdraw the amount till the disposal of the appeal. Resultantly, aggrieved by the said order, the present revision petition has been filed.
3. Counsel for the petitioner has contended that the lease deeds placed on record by the tenant and which have been ignored show that on the date of ejectment, a sum of Rs. 54,400 was being paid by the tenant regarding the premises pertaining to SCO No. 370, Sector 44-D, Chandigarh and similarly for SCO No. 369, Sector 44-D, Chandigarh, a sum of Rs. 46,225 was being paid for the year 2011 and accordingly, it is contended that the rent fixed at Rs. 1 lac was very onerous and whimful and the order was liable to be set aside. Reliance has been placed on judgment of this Court rendered in M/s. Jewellers Khanna Sons vs. Dr. Naresh Mittal and others, 2009 (3) CCC 616 and judgment of the Hon''ble Apex Court in Mohammad Ahmad and another vs. Atma Ram Chauhan and others, 2011 (2) PLR 711 and Anderson Wright & Co. vs. Amar Nath Roy and others, 2005 (2) CCC, 0318 to contend that the mesne profits have been fixed arbitrarily. It is also argued that reliance upon the lease deed relied upon by the landlady was not appropriate since the same pertains to lease deed of a wine shop which was only for a period of one year and the premises in question also includes the basement portion. It is pointed out that the entry to the premises in question in the wine shop had two entrances, front and back entry both, and, therefore, the rent should be maximum at the rate of Rs. 50,000 for the premises in question. It is further contended that the property in question was leased out in the year 2004 @ Rs. 24,500 and after giving the 10% increase as per clause 4, a sum of Rs. 35,000 was being paid now.
4. Counsel for the respondent-landlady, in rebuttal, has argued that the lease deed dated 16.03.2005 relied upon was of the year 2005 whereas the ejectment order in the present case was dated 10.05.2011. It is accordingly contended that the rent in the said lease deed could only increase @ 6% per annum as per the terms of contract between the parties and there was a difference of six years between the lease deed referred to and the eviction order, similarly, it is pointed out that the lease deed dated 11.10.2009 also had an increase clause of 7.5% annually and it started from the initial amount of Rs. 40,000 and there was a difference of two years and the said lease deeds could not be an effective barometer to assess the mesne profits. It is contended that since there was a dispute regarding whether the premises in question had two entrances or not, the landlady was directed to file an affidavit and accordingly, an affidavit has been filed which reads as under:
1.That the peDhooper in the passages/Entries, titioner-Subhash present case one exclusively Chahas from nder two the front side and the other is from the back side.
2. That the back side Entry/passage is also used by the tenant, as the basement is separately rented out.
3. That the entry at the back side is not used for the basement alone. The petitioner-Subhash Chander Dhooper has also washroom facility being used by him on the back side.
5. Thus, from the said affidavit, it becomes clear that the only difference between the property no. 363 and property no. 373 is that the said shop also has the basement which has been leased out and if the rent of the basement is excluded, which should be 30% of the ground floor, the rent would come to Rs. 1,40,000. Reliance can be placed upon Ranjit Singh Rana vs. Manpreet Phulka and others, 2011 (3) PLR 664 to hold accordingly. The relevant paras of the judgment reads as under:-
9. Learned Counsel for the landlords has contended that the learned Appellate Authority has assessed the mesne profits after taking into account the prevalent market rent as the registered lease deed dated 16.07.2010 pertains to the covered area of 1800 Sq. Ft. of ground floor which was let out for Rs. 3,50,000/- per month. The 30% of the said rent was considered to be the rent of the basement which comes to Rs. 1,00,000/- per month and since the mesne profits were to be assessed in respect of half portion of the basement, therefore, it has been assessed @ Rs. 50,000/- per month and in respect of half portion of the ground floor, the learned Appellate Authority had multiplied the rent of Rs. 14,775/- with 5 and granted mesne profits @ Rs. 73,875/- per month. Thus, it is submitted that there is no error in the approach of the learned Appellate Authority while passing the impugned orders.
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12. In our case, we are only concerned with the first guideline in which the Supreme Court has held that the tenant must enhance the rent according to the terms of the agreement or at least by ten percent after every three years and if the rent is too low in comparison to market rent, having been fixed almost 20 to 25 years back, then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas.
13. After discussing the entire facts and law of all these cases, I am of the considered opinion that there is no error in the orders passed by the Appellate Authority assessing the mesne profits of the demised premises. Hence, the present revision petitions are found to be without any merit and as such, the same are hereby dismissed.
6. The submission made by the counsel for the tenant thus is not justified. Admittedly, the contractual rate of rent has come to an end after the ejectment order and, therefore, the submission that it was initially leased out for Rs. 24,500 in 2004 and the tenant was increasing it by 10% every year and at present was paying Rs. 35,000, is without any basis since the Hon''ble Apex Court itself has held in the judgments of Anderson Wright (supra) and Atma Ram Properties vs. Fedral Motors that after the order of eviction, the earlier contractual rent comes to an end. In the present case, the landlady has relied upon the premises which have been rented out in the S.C.O. of the same area for a sum of Rs. 2 lacs. The appellate authority rightly has decreased the mesne profits by 50% keeping in mind that the other premises has a basement also apart from the ground floor since the property in question only has a ground floor leased out and the fact that it has been leased out to a wine shop for one year only. this Court in Ranjit Singh''s case (supra) has upheld the method arrived by the appellate authority in another case by holding that 30% of the rent of the ground floor would be liable to be paid by the person in occupation of the basement. Accordingly, the appellate authority has taken into consideration the registered lease deed dated 02.05.2011 and fixed a sum of Rs. 1 lac after taking into consideration that it was leased out to a wine shop. this Court in Surinder Kumar vs. Rattan Lal 2006 (2) PLR 200 has held that registered lease deeds have to be taken into consideration after taking all the relevant case law into consideration and the observations of this Court read as under:-
The other questions that requires consideration is the mode of determination of the mesne profits or compensation payable. In this respect, it is appropriate to note that the same is to be done on the basis of materials placed on record by the parties. The parties would be at liberty to place cogent evidence by way of recent registered lease deeds of the locality to show their amount of rent which is payable. It is on the basis of such convincing material that a provisional assessment of the compensation/damages which the tenant is liable to pay the landlord pending his appeal or revision against an order of ejectment, can be determined. This provisional assessment that has been made would be subject to adjudication at the time of final disposal of the appeal or revision as the case may be. If the final adjudication by the appellate or revisional Court in respect of the damages or compensation payable by the tenant is at variance with the provisional order, the landlord would be liable to reimburse or refund the excess amount deposited by the tenant and in case of deficient deposit, the tenant shall be liable to make good the deficient amount. In fact in Atma Ram Properties case (supra), the Hon''ble Supreme Court held that reversal of interim orders passed at the interim stage due to final decision going against the party securing the interim order in its favour would entitle the successful party to demand (a) restitution of benefit earned by the opposite party under the interim orders or (b) compensation for what it has lost.
Accordingly, it can be safely held that the parameters applied by the appellate authority assessing rent at Rs. 1 lac per month for the premises in question cannot be said to be without any basis or whimful or fanciful in any manner. The appellate authority has relied upon the registered lease deeds in the neighbourhood and kept in mind the type of construction and has ensured that the amount shall be deposited in the fixed deposit receipt and shall be subject to the final decision of the appeal and has rightly passed the order. Accordingly, there is no merit in the revision petition and the same is dismissed. However, since the appellate authority had granted time to deposit the amount within 30 days from 10.02.2012, the said time is extended to deposit mesne profits till 30.04.2012.
